The federal judge overseeing the New Orleans jail’s long running consent decree raised concerns on Wednesday that the current timeline for the completion of a controversial mental health facility would blow past a deadline for tens of millions in funding from the Federal Emergency Management Agency, which could leave taxpayers on the hook for funding the construction. 

The building, known as Phase III, has been the source of debate for years between proponents, like Orleans Parish Sheriff Marlin Gusman, and criminal justice reform advocates opposed to expansion of the jail. The city, which would be responsible for construction, has occasionally supported it over the past decade — and agreed to build it in 2017 — but has come out steadfastly against it under Mayor LaToya Cantrell. 

However, Judge Lance Africk, who is presiding over the consent decree — meant to bring conditions at the jail into compliance with the Constitution — has ordered the Cantrell administration to move forward.

The city is appealing the order, but should that fail, a loss of FEMA money could put New Orleans taxpayers on the hook for tens of millions of dollars. The full cost of the building is estimated at $51 million, of which the federal agency has pledged nearly $40 million, money that was originally pledged to the city to repair buildings damaged after Hurricane Katrina.

Both the monitors and Africk have deemed the 89-bed Phase III necessary for providing adequate mental health care to detainees in the jail, even as the city attempts to block its construction and reform groups argue that it would lead to further criminalization of mental illness. 

A spokesperson for the city declined to comment on the fact that the Phase III construction timeline does not meet the FEMA funding deadline.

Also at Wednesday’s hearing, lead monitor Margo Frasier summarized a recent report on the progress the Sheriff’s Office has made in living up to the provisions of the consent decree. She testified that while the jail has regressed somewhat in terms of the number of items in compliance since the last report she still saw a trend toward progress. 

“I think sometimes when we compare period to period, or even year to year, that it gives a false picture of progress,” Frasier said, noting the difference in the conditions between the first time she visited the jail versus how it is now.  

“It was filthy, it was dangerous, it was clear to me why the court had had to intervene,” Frasier said. “Fast forward to right now, it is a very different environment in the jail system in Orleans. It still not where it needs to be — I don’t think it’s where the Sheriff wants it to be. But there has been significant progress, and I think it is only fair to recognize that.” 

Some of the most serious remaining issues that are out of compliance are in regard to the provision of mental health care at the jail. Mental health monitor Dr. Raymond Patterson, who appeared over Zoom, said that the jail’s healthcare contractor Wellpath was not doing enough to identify detainees who would benefit from counseling for domestic violence, or sexual violence or substance abuse. (The Coroner’s Office recently released a report on a jail detainee who died over the summer, finding that the cause of death was a fentanyl overdose.)

The monitors’ report, released last month, notes that during a three-month period between January and March of this year, Wellpath reported that 41 people attended counseling for those issues, but that number appeared “inflated for individual and group counseling that consisted of handouts given to patients for in cell reading.”

And at the hearing, Patterson said that it was hard to assess how good a job Wellpath was doing of providing counseling without first understanding how many detainees were in need of it.

“It is not adequate to say that we gave or provided a service to two people, or twenty people or two hundred people without considering how many people actually need that service,” Patterson said. 

Still, Africk praised both the monitors and Gusman for the progress that had been made over the years, saying that he could “see the light at the end of the tunnel.”

“I am optimistic that there will be substantial compliance in all areas — in the future that will be achieved,” Africk said.  He also praised Gusman’s “remarkable” handling of the COVID-19 pandemic inside the jail, which he called “nothing short of life saving.”

Phase III

But the monitors have determined that the Phase III mental health facility is required to bring the jail into full compliance with the terms of the consent decree, and Africk said at the hearing on Tuesday that “once Phase III is completed, a major obstacle will have been cleared toward substantial compliance.” 

Gusman, as well as the other parties to the consent decree — the U.S. Department of Justice and civil rights attorneys representing people incarcerated at the jail — have also come out in favor of Phase III. 

The hearing, however, highlighted several potential obstacles to the construction of the facility. Among them is the fact that the current projected completion date for the project is after a deadline that requires any Hurricane Katrina related project be “substantially completed” in order for it to get FEMA funding. 

The city has said that FEMA will cover $39 million of the $51 million dollar cost of Phase III. But as it stands the city is anticipating the project won’t be completed until January 2024. The deadline for receiving FEMA money is in summer 2023, on the 18th anniversary of Katrina. 

Michael Gaffney, a lawyer who has represented the Orleans Parish Sheriff’s Office FEMA negotiations, and testified at an October 2020 Phase III hearing as a FEMA expert, said that there was reason to be concerned. 

“The court has been concerned about the FEMA funds disappearing if the project is not completed by a certain date. I’ll just ask you … is that a risk we need to be concerned about?” Magistrate Judge Michael North asked Gaffney.

“It is definitely a risk,” Gaffney said. “All projects that FEMA is funding should be substantially complete on August 29, 2023, or FEMA is going to shut down the project and you get no funding at all” 

Gaffney said he was not aware that anyone had reached out to FEMA to inform them that the building was not scheduled to be completed on time. 

“Last time we spoke to FEMA about this, they said ‘The deadline is the deadline. We will not accept requests for an extension, unless at that point in time, you are just about finished,’” he said. “Now, what that means in reality, we’ll have to see.” 

Gaffney said that “substantially complete” means that the facility needs to be to a level where it is meeting its intended purposes — in the case of Phase III, functioning as a mental health facility. 

“So am I correct that if the city doesn’t meet it’s deadlines the taxpayers in Orleans — or some other entity, the state — will have to fund this project, and lose millions of FEMA dollars, is that correct?” Africk asked.

Gaffney said that was correct. 

The city has also said that it will first need the City Council to amend a 2011 zoning ordinance if they are going to proceed with the construction, which has raised questions from Africk regarding what will happen should the council decline to approve the changes.  While City Council members were invited to attend the hearing on Wednesday, none actually showed up. 

Africk said that regardless of whether or not the council approved the zoning changes, he expected the city to comply with his order to move forward with construction of Phase III.

“I expect a federal court order to be complied with,” Africk said. “Throughout history, not complying with federal court orders has not been a successful strategy. And we’ll just leave it at that.” 

Sade Dumas, executive director of the Orleans Parish Prison Reform Coalition who have been organizing against Phase III, attended the hearing Wednesday morning. She said it affirmed her opposition to the facility. 

“If Sheriff Gusman can not keep the partially-empty Orleans Justice Center staffed now, how much more will building an extra Phase 3 psychiatric facility exacerbate issues for people detained under his custody?” she said in a statement. “Another jail building will not address issues mentioned during today’s hearing — like reduced staffing, delayed access to care, dangerous suicide watch ratios, and high levels of use of force.”